Friend of the Indiana appellate and post-conviction advocate

A New Defense for Trafficked Persons

In my last post, I explained Indiana’s vacatur statute and how it could positively impact human trafficking victims through relief from their prior adult convictions and juvenile adjudications.

This begs the question: why would a human trafficking victim currently facing charges first have to suffer through a conviction in order to be given the opportunity to vacate that conviction? This seems not only unfair but a significant waste of court time and resources.

It is for these reasons I believe the vacatur statute also creates a new criminal defense: the “trafficked person” defense. The “trafficked person” defense should absolve a human trafficking victim of criminal liability if s/he can prove the following: (1) the person was a “trafficked person” at the time the person committed the offense; (2) the offense did not result in bodily injury to any other person (other than the trafficked person); and (3) when the person committed the offense, s/he was coerced by or under the control of another person. The same would be true of a trafficked child facing a juvenile delinquency allegation.

How would the trafficked person defense be different than Indiana’s duress defense? Unlike the duress defense, which requires proof that the crime was compelled by threat of imminent serious bodily injury for felonies and threat of or actual force for misdemeanors, the trafficked person defense requires proof of only coercion or control. Another limitation of the duress defense is its inapplicability to any of the crimes listed in Indiana Code article 35-42. The trafficked person defense has no such limitation. Finally, the duress defense is not applicable when the person placed herself in a situation where duress would be reasonably foreseeable. The trafficked person defense does not have that limitation either.

One concern defense counsel may have is the objection prosecutors and judges will likely have when a defendant asserts the trafficked person defense. Yet defendants have both a Federal and State constitutional right to present a defense. The Federal constitutional right stems from the Sixth Amendment and from the Due Process Clause. See Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388 U.S. 14 (1967). The State constitutional right stems from Article 1, Sections 12 and 13 from the Indiana Constitution.

Unfortunately, trafficked persons rarely self-identify as human trafficking victims. In my next post, I’ll provide clues to investigate further whether your client may be a trafficking victim.

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